Bombay High Court
Nana @ Badrinath S/O. Dashrath Barela vs The State Of Maharashtra And Anr on 12 September, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:22686-DB
APEAL-131-22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 131 OF 2022
WITH
CRIMINAL APPLICATION NO. 29 OF 2020
Nana @ Badrinath Dashrath Barela
Age: 30 years, Occu.: Labourer,
R/o Kanhora, Tq. Bhatiyagad,
Dist. Damu (M.P.) ..APPELLANT
VERSUS
1. State of Maharashtra
2. Ajay Santosh Patil
(Deleted vide order dated 21st August, 2024) ..RESPONDENTS
....
Mr. R.D. Biradar, Advocate for appellant (appointed through Legal Aid)
Mr. S.D. Ghayal, Addl.P.P. for respondent no.1 - State
....
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ
DATE : 12th SEPTEMBER, 2024
ORAL JUDGMENT ( PER : R.G. AVACHAT, J. ) :
1. The challenge in this appeal is to a judgment and order of
conviction and consequential sentence dated 16th September, 2015 passed
by the Additional Sessions Judge, Amalner ('trial Court') in Sessions Case,
No. 18 of 2013. Vide the impugned judgment and order, the appellant has
been convicted for the offence punishable under Section 302 of the Indian
Penal Code ('I.P.C.'), and therefore, sentenced to suffer life imprisonment
and to pay fine of Rs.5,000/-. In default of payment of fine amount, he is
directed to undergo rigorous imprisonment for two years.
APEAL-131-22.odt
2. The facts giving rise to the present appeal are as under :-
The appellant had married PW 5 - Ekaribai about 10-12 years
before the incident, dated 02nd July, 2012. The couple was blessed with four
children, two sons and two daughters. The appellant wanted to have
unnatural intercourse with his wife, to which she refused. She, thereafter
started residing at the house of her father, PW 11 - Renja at village
Ghodegaon. Her uncle - Kisan (deceased) would also reside thereat. The
appellant alongwith 10-12 persons had come to the house of his father-in-
law. He quarreled with him and returned. After two days he again came. He
was alone. It was midnight. He assaulted Kisan with an axe and then fled.
3. PW 5 - Ekaribai, her father and others first approached their
landlord, PW 2 - Ajay and informed about the incident, who in turn, lodged
the F.I.R. (Exh.18) with Chopda Rural Police Station. Crime, vide C.R. No.
29 of 2012 was registered against the appellant. Crime scene panchanama
(Exh. 16) and inquest (Exh.15) were drawn. Mortal remains of Kisan was
subjected to autopsy. The appellant was arrested about eight months after
the incident. Pursuant to the disclosure statement made by him, an axe
came to be seized. All the seized articles were submitted to R.F.S.L., Nashik
for analysis and report. On completion of investigation, the appellant was
proceeded against by filing the charge-sheet.
4. The trial Court framed the charge (Exh.8). The appellant pleaded
not guilty. His defence was of false implication.
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5. The prosecution examined thirteen witnesses and produced in
evidence certain documents to establish the charge. The trial Court, on
appreciation of the evidence in the case, convicted and consequently
sentenced the appellant as stated above.
6. Learned counsel for the appellant would submit that there is no
independent eye witness to the incident. The incident took place at the dead
of night. There was no electricity. It was dark. Had the appellant really been
to the house of his father-in-law alongwith 10-12 persons two days before the
incident, report to that effect would have been lodged with the concerned
police station. The axe seized pursuant to the disclosure statement made by
the appellant did not bear blood stains. It would, therefore, not be a
disclosure statement relevant under Section 27 of the Evidence Act.
According to him, the criminal law was set in motion by the person, who did
not witness the incident. The wife of the appellant or her father should have
lodged the report. They did not do so. The reason therefor would not inspire
confidence. He, therefore, urged for allowing the appeal.
7. Learned Addl.P.P. would, on the other hand, submit that it is an
open and shut case. According to him, the wife had no reason to give
evidence against her own husband. The parties were tribals. It was,
therefore, but natural on their part to first approach the landlord and then to
the concerned police station. When the case is based on the eye witness
account, the fact that there were no blood stains noticed on the axe, seized
APEAL-131-22.odt
pursuant to the disclosure statement made by the appellant, would be of little
consequence. He, therefore, urged for dismissal of the appeal.
8. Considered the submissions advanced. Perused the evidence on
record and the judgment impugned herein. Let us now advert thereto and
appreciate the same.
9. The appellant had married PW 5 - Ekaribai about 10-12 years
before June 2012. The couple was blessed with four children, two boys and
two girls. As the appellant wanted to have unnatural intercourse with his
wife, she left the house and started residing at the house of her father at
village Ghodegaon. Her uncle - Kisan and other family members would also
reside thereat. Their houses were on the land of one Ajay Santosh Patil.
10. PW 8 - Sanjay Jadhav was the Medical Officer on duty at Sub-
district Hospital, Chopda. He conducted postmortem examination on the
mortal remains of deceased Kisan by 12:00 p.m. The postmortem
examination report under his signature is at Exhibit 37. He noticed a deep
incised wound on the right side of neck just below mandible measuring 10 x
5 x 3 cm. In his opinion, Kisan died of hypovolumic shock due to
haemorrhage due to deep incised wound over neck. Viscera was, however
preserved.
11. PW 1 - Rahul is a witness to the inquest panchanama (Exh.15)
and crime scene panchanama (Exh.16). The same is not in dispute before
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us. PW 2 - Ajay had lodged the F.I.R. (Exh.18). He is not an eye witness to
the incident. According to him, Gajmal had come to him at 06:30 a.m. on
02nd June, 2012 and informed his uncle Kisan to have been murdered. He,
therefore, went to the spot and saw Kisan dead. Gajmal also told him the
appellant to have killed Kisan. He, therefore, informed the Chopda Rural
Police Station. The report lodged by him reduced into writing. It finds place
at Exhibit 18.
12. PW 2 - Ajay being not an eye witness, his evidence would only be
relevant so as to set the criminal law in motion.
13. PW 3 - Narayan was a photographer. He snapped the photos of
the dead body. PW 4 - Jaising is a witness to the disclosure statement
made by the appellant on 19 th February, 2013, pursuant to which an axe
came to be seized. The disclosure statement and seizure memo find place
at Exhibits 25 and 26 respectively. Since the C.A. report (Exh.51) indicates
no blood was noticed on the seized axe, it could not be said that the
deceased was done to death with the assault therewith.
14. PW 6 - Rashid did not stand by the prosecution. PW 7 - Itbar
was a Maintenance Surveyor, who drew the sketch of the crime scene. The
sketch is at Ehixbit 34. PW 9 - Pradip and PW 10 - Gulab were the Police
Head Constables, who had carried the seized muddemal to R.F.S.L.,
Nashik. PW 12 - Mushtaq, Assistant Police Inspector, drew the
APEAL-131-22.odt
panchanama (Exh.48) of the clothes of the deceased. While PW 13 - Sunil,
Deputy Superintendent of Police, did the investigation of the crime.
15. The fate of the appeal is mainly based on the evidence of the
appellant's wife and his father-in-law, PW 5 - Ekaribai and PW 11 - Renja.
Postmortem report (Exh.37), undoubtedly goes a long way to indicate the
deceased met with homicidal death. The evidence of PW 5 - Ekaribai
indicates that her marriage with the appellant took place 10-12 years prior to
June 2012. The couple was blessed with four children. The appellant
compelled her to submit to his lust for unnatural intercourse, to which she
refused and thereafter started residing at the house of her father at village
Ghodegaon. Her uncle, Kisan (deceased) and other relations would also
reside in the nearby of each other. Their residences were on the land of one
Dilip Santosh, the landlord. It is further in his evidence that the appellant had
come alongwith 10-12 persons just two days before the incident. He
quarreled with PW 11 - Renja, her father and returned. It appears that he
had come to get her back to her matrimonial home.
16. The evidence of PW 5 - Ekaribai further indicates that after two
days the appellant again came. It was a midnight. The appellant was armed
with an axe. He assaulted her uncle - Kisan with the said axe. Her evidence
gets reinforced by the evidence of her father, PW 11 - Renja. It is in his
evidence that his daughter, PW 5 - Ekaribai was not willing to go back to her
matrimonial home. He had, therefore, asked her to stay for two days. He
APEAL-131-22.odt
had persuaded the appellant and even expressed excuse. The appellant
went away. It is further in his evidence that the appellant came in the night
time. He was armed with an axe. He assaulted Kisan with the said axe. On
hearing the shouts of Kisan, he woke up. He saw the appellant running away
with the axe.
17. Both, PW 5 and 11 were subjected to a searching cross-
examination. Both of them are tribals. It was, therefore, but natural for them
and their family members to first approach their landlord. No fault therewith,
therefore, could be found. The appellant could be overpowered eight months
after the incident. The same indicates he was absconding. This conduct
was inconsistent with his innocence. His wife and father-in-law have no
reason to implicate him in the crime, sparing the real culprit by speaking
against the appellant. PW 5 - Ekaribai put her matrimonial life at stake. She
was categorical to deny that due to darkness she could not notice or identify
the assailant. Similar suggestion was denied by PW 11 - Renja.
18. In our view, the evidence of PW 5 - Ekaribai (wife of the
appellant) and PW 11 - Renja (father-in-law of the appellant) lead us to
conclude that it was the appellant and none else, who has committed murder
of his cousin father-in-law, Kisan. We, therefore, find no reason to interfere
with the order of conviction.
19. The offence took place on the ground that the appellant's in-laws
had refused to send his wife back to her matrimonial house (appellant's
APEAL-131-22.odt
residence). The trial Court, while imposing fine of Rs.5,000/-, has directed
the appellant to undergo rigorous imprisonment for two years, if he fails to
pay the fine. In the facts and circumstances of the case, we reduce the
sentence of two years to two months imposed by the trial Court in case of
default of payment of fine amount. With this, the appeal stands disposed of
in terms of the following order :-
ORDER
(I) Conviction and sentence of the appellant imposed by the
Additional Sessions Judge, Amalner in Sessions Case No.
18 of 2013 vide judgment and order dated 16 th September,
2015 is maintained.
(II) The fine amount imposed also stands maintained only with
a modification to the effect that if the appellant fails to
deposit the fine amount, he shall undergo rigorous
imprisonment for two months, instead of two years.
(III) In view of disposal of criminal appeal, criminal application
also stands disposed of.
(IV) Fees of Mr. R.D. Biradar, learned counsel appointed
through Legal Aid for appellant is quantified to Rs.12,000/-
(Rupees Twelve Thousand).
( NEERAJ P. DHOTE, J. ) ( R.G. AVACHAT, J. )
SSD
